Emmanuel Musembi Nthambi v Tarmal Wire Products Ltd
The bottom line
#Kenya's Court of Appeal confirmed that when a fixed-term employment contract simply expires, an employer's decision not to renew it is not unfair termination and no damages are payable.
What this practically means
#Executive summary
#Key legal issues
#Whether the expiry of a fixed-term contract amounts to unfair termination
Expiry of a fixed-term contract by effluxion of time, with the employer exercising its contractual right not to renew, is not termination and gives rise to no damages for unfair or wrongful dismissal
The court re-evaluated the two signed contracts, found them valid and unchallenged before the trial court. The appellant worked for the stipulated period; the contracts lapsed by effluxion of time and the respondent exercised its contractual right not to renew. Accordingly no termination, fair or unfair, arose and no damages were awardable.
Whether validity of contracts may be raised for the first time on appeal
A challenge to the validity of the contracts that was not raised and canvassed before the trial court cannot be entertained on appeal
The appellant never denied signing the contracts or impugned their authenticity before the trial court, and validity was not raised as a ground of appeal. The court held the issue ought to have been canvassed below to allow the trial judge to pronounce himself on it.
Whether the trial court's silence on costs is reversible error
Although the Judge failed to make any order on costs, the appellate court declined to interfere, instead expressly recording that no costs were awarded to either party
Costs follow the event but are discretionary and reasons for departure should be recorded. As a first appeal court, it could have made a costs order, but since the claim succeeded only to a small extent, it inferred the Judge did not intend to award costs and merely clarified that none were awarded.
Legal principles established
#- A party may not challenge the validity of a contract for the first time on appeal where it was not raised before the trial court
- Costs follow the event but remain at the court's discretion, and reasons should be given for departing from the general rule
- On a first appeal, the Court of Appeal may itself make an order on costs as the justice of the case requires
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear its own costs both in the Court of Appeal and in the court below
- 3.Express clarification that the learned Judge did not award costs to either party
- On appeal from
- Employment & Labour Relations Court of the High Court of Kenya at Mombasa
- Employment and Labour Relations Cause No. 583 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment Act and applicable appellate statutory framework (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Musembi Nthambi v Tarmal Wire Products Ltd", Case Analysis (2018). Civil Appeal No. 45 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/773/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.